Scottish High Court of Justiciary Decisons

JOHN JAMIESON SHARKEY v. HER MAJESTY'S ADVOCATE [2001] ScotHC 14 (27th March, 2001)

[1] The appellant stood trial in the Sheriff Court at Glasgow on two charges of contraventions of the Misuse of Drugs Act 1971. The first charge was one of possession of a small amount of cannabis resin contrary to section 5(2) of that Act. The appellant did not dispute this charge. He was found guilty of the charge unanimously. The appeal concerns only the second charge on which the appellant was convicted by a majority. This charge was that, between 25 November 1997 and 28 February 1998, in the house occupied by him at 12/4, 37 Fountainwell Avenue, Glasgow he was concerned in the supplying of temazepam, contrary to section 4(3)(b) of the Act.

[2] The primary submission for the appellant was that the sheriff's charge gave inadequate and insufficient directions as to the elements necessary for proof of such a contravention. Since the case of Salmon v. H.M. Advocate 1999 JC 67 the elements have been authoritatively set down. We refer first of all to the opinion of the Lord Justice General at page 81, where he pointed out that just as the initial onus remains on the Crown under Section 5, so also the initial onus remains on the Crown under Section 4(3). Under Section 4(3)(b) the Crown requires to prove both that the accused was concerned in supplying a product or substance and that the product or substance was the controlled drug libelled in the charge. The Lord Justice General then continued:

In the next paragraph the Lord Justice General said:

In the same case, at page 97, Lord Bonomy said:

[3] The evidence, as appears from the sheriff's report and her charge, began with a police search and the discovery of a green holdall retrieved from below a bed settee at the address in the charge. This bed settee was in the living room of the house. The bag was found to contain some 34 plastic bags. In all there were some 3,322 capsules of temazepam within the bags. Additionally, a mobile phone and pager were taken. Police evidence was given that such an amount was a street dealer's amount. The house itself was the property of the City of Glasgow Council, but the tenancy had been in the name of the appellant since 3 July 1997. The appellant was present when the police came to the house on 25 February 1998. It also appears that other witnesses, including James Brown and Amanda Brown, the appellant's girlfriend, were also present in the house. Video evidence taken at the time was shown to the jury. During it the appellant admitted that he used the living room and that he slept on the bed there. James Brown gave evidence that the appellant slept in the bed while he slept in the bedroom of the house.

[4] The sheriff records that at the time of the search the appellant denied any knowledge of the green holdall. Evidence was given by a number of witnesses, including Amanda Brown and her stepmother, Mrs. Agnes Brown, to the effect that the appellant had not lived at the house at Fountainwell Avenue, despite having the tenancy, except on occasional visits. Amanda Brown said that she had slept in the house on one occasion prior to 25 February but that James Brown stayed there. James Brown was the subject of a special defence of incrimination by the appellant.

[5] In approaching her directions to the jury on the second charge, the sheriff began by outlining to them what she called "a little bit about possession of drugs" to put this charge into context and "a little about possession with intent to supply only to put it into context". She went on to say:

She then advised the jury about the element of control inherent in possession, namely, "You could not possess items whose existence you were unaware of". She contrasted the position between section 5(2) and section 5(3) and then went on:

She then went on to explain that there are a great variety of activities which may be involved in being concerned in the supplying of a controlled drug. This section of her charge she concluded as follows:

[6] The sheriff, having reminded the jury about the special defence and advised them that it did not do more than give fair notice to the Crown, leaving the Crown to establish the accused's guilt beyond reasonable doubt, then turned to the evidence. In doing so she first of all posed the question "Was a crime committed?" In relation to charge 2 she reminded the jury of evidence from two police officers who went with a search warrant to the appellant's house just before 11 o'clock at night on 25 February 1998. She reminded them that they had seen events recorded on video which showed the appellant, his girlfriend and James Brown in the house. It also showed the retrieval of the green holdall. She reminded them of what had been found within the holdall by way of the bags containing temazepam capsules. She then against posed the question "Was a crime committed?" She referred to a forensic report about the capsules as being temazepam. She made reference to the evidence of one officer speaking to the quantities of temazepam being those of a street dealer. At the conclusion of this passage she said this:

She then immediately posed the second question: "Who committed the crime?" So far as charge 2 she went on to say this:

Having described the circumstances of the tenancy, she then said: "Are there any other links?" and went on to refer to the video evidence in which the appellant had said that he used the living room and that he slept on the bed and other evidence that James Brown used another bed in the flat. She referred, in this passage, to the replies given to police officers by the appellant at the time, to the effect that he had no knowledge of the bank bags under his bed. He had explained that the bed had been folded down two weeks before. The sheriff also indicated that the evidence for the Crown included a statement by James Brown that the appellant slept on the bed in the living room. The sheriff, having referred to the evidence about the tenancy, the evidence of what was said on video by the appellant in relation to the living room and sleeping on the bed and the evidence of what was said on video by James Brown about the appellant sleeping on that bed, continued:

The sheriff then went on to refer to evidence from Amanda Brown that shortly after the police left, James Brown had confessed that he was responsible for the drugs and also that the appellant had not lived in the house but that James Brown stayed there. This witness had also given evidence that she and the appellant were responsible for pulling the bed settee into the sleeping position some week or two weeks before. The sheriff, having referred to this evidence of Amanda Brown, then continued:

Thereafter the sheriff rehearsed the defence evidence which, as outlined before, consisted of a denial on the appellant's part that he knew anything about the bag and other evidence to the effect that he was not living in the house, despite having the tenancy.

[7] Mr. Shead pointed out that at no point in her directions regarding the charge had the sheriff given clear directions as to the elements of the offence as set out in the case of Salmon v. H.M. Advocate. In particular, by posing the questions in the manner that she did, the sheriff appeared to link the crime libelled, as she called it, by reference to his tenancy of the flat and the occupation of the bed in the living room. At no point in the course of her charge did she explain to the jury that it was necessary for them to be satisfied, beyond reasonable doubt, that the accused knew that he was involved in supplying something and that the thing with which he was concerned in supplying was the controlled drug libelled in the charge. The evidence which the sheriff referred to in relation to the first question posed "Was a crime committed?", was no doubt sufficient to satisfy the jury that the controlled drugs libelled in the charge were present in the flat at the time that the police officers searched it and that they were a dealer's amount. However, she did not direct the jury as to an essential element of the offence which the Crown had to establish, namely, knowledge on the accused's part that he was involved in supplying something and that that thing, which he was concerned in supplying, was contained within the green holdall.

[8] For the Crown the advocate depute simply maintained that the directions given to the jury were adequate.

[9] In our opinion the directions given were inadequate. The reference to the provisions of sections 5(2) and 5(3) of the Act, at the start of the sheriff's directions on this aspect of the case, did not serve any useful purpose. By subsequently posing questions in the manner which she did, the sheriff failed to concentrate upon the essential elements in the charge, which was one of being concerned in the supplying of a controlled drug. For whatever reason, directions of the kind which were indicated in Salmon v. H.M.Advocate were not given.

[10] In the circumstances of this case, we are satisfied that the jury were not properly directed as to the issues which they required to consider and the elements which the Crown required to establish, in evidence, before the jury could convict the accused of the crime with which he was charged. For all these reasons we shall quash the conviction on charge 2.

[11] We do not therefore require to consider a further submission which was made by Mr. Shead in relation to proof of the latitude of time taken in charge 2. We observe, however, that it does not appear, as the sheriff tells us in her report, that this matter was addressed in the speeches either for the Crown or for the defence. That is a further reason why it would be inappropriate for us to make any comment on the matter.